2. When determining criminal history under the Kansas Sentencing Guidelines Act,
if the convicting jurisdiction does not delineate between felonies and
misdemeanors, that determination is made by comparing the offense to the most
comparable Kansas crime.

3. In an appeal from a departure sentence, an appellate court must determine
pursuant to K.S.A. 1994 Supp. 21-4721(e) whether the sentencing court's
findings of fact and reasons justifying departure (1) are supported by substantial
competent evidence and (2) constitute substantial and compelling reasons for
departure as a matter of law.

4. Under the provisions of K.S.A. 21-4720(b)(5), when sentences are entered
consecutively, the full criminal history should be applied to the base sentence,
but no criminal history is to be applied in calculating the nonbase sentence.

SMITH, J.: The defendant, Rafael Hernandez, appeals his convictions of sale of
marijuana, conspiracy to sell marijuana, and no drug tax stamp. We affirm in part and
remand the cause to the district court for resentencing.

A jury convicted the defendant of offering to sell marijuana, conspiracy to sell
marijuana, and no drug tax stamp. Defendant's convictions stemmed from an
undercover marijuana buy which occurred in Dodge City, Kansas. The State's primary
witness was Officer Ray Riniker, an undercover police officer from the Wichita Police
Department. Officer Riniker had telephone contact with defendant and Pedro Rivera on
several occasions, arranging a purchase of controlled substances. Defendant made
arrangements with Riniker over the telephone for a meeting at which defendant and
Rivera would deliver marijuana to Dodge City. These telephone contacts were initiated
through a confidential informant. Both Rivera and defendant were communicating with
Officer Riniker from Truth or Consequences, New Mexico.

Officer Riniker and another undercover officer met defendant and Rivera at a
restaurant in Dodge City. Eventually, several kinds of drugs and possible transactions
were discussed. Later, the four men went to a motel room where defendant and Rivera
produced seven packages of plastic-wrapped marijuana. Defendant told Officer Riniker
to open one of the packages and see how he liked the marijuana. Once the details of
the buy were agreed upon, Officer Riniker signaled the surveillance officers to come in
and arrest defendant and Rivera.

At sentencing, the State moved for an upward durational departure, which the
trial court granted. Defendant was sentenced to 59 months' imprisonment on the offer
to sell marijuana conviction, 52 months' imprisonment on the conspiracy to sell
marijuana conviction, and 7 months' imprisonment on the no drug tax stamp conviction.
The two marijuana sentences were ordered to run consecutively and the tax stamp
sentence was ordered to run concurrently.

MILITARY CONVICTIONS

Defendant's criminal history includes three military convictions. In 1983, he was
convicted of one count of wrongful distribution of methamphetamine and two counts of
wrongful distribution of marijuana. The trial court found in the present case that these
convictions should be counted as three previous felony convictions for criminal history
purposes. Defendant argues the Kansas Sentencing Guidelines Act (KSGA) is silent
as to how military convictions are to be scored; therefore, they must be scored as
misdemeanors.

K.S.A. 21-4711(e) requires the sentencing court to include military convictions in
criminal history: "Convictions or adjudications occurring within the federal system, or
other state systems, the District of Columbia, foreign, tribal or military courts are
considered out-of-state convictions or adjudications."

In determining criminal history, the sentencing court looks to the state in which
the conviction occurred to determine if the crime is classified as a felony or
misdemeanor. The court looks to the most comparable Kansas offense to determine
whether the conviction is classified as a person or nonperson crime. K.S.A. 21-4711(e).
This issue arises from the fact that military convictions are not designated as either
felony or misdemeanor. See Uniform Code of Military Justice, 10 U.S.C. §§
877-934
(1994).

The KSGA does not provide how to classify prior convictions when the
convicting jurisdiction does not classify the crime as either felony or misdemeanor.
How to so classify represents a question of first impression for this court.

The applicable rules of statutory construction are well settled:

"The fundamental rule of statutory construction, to which all others are subordinate, is
that the
purpose and intent of the legislature governs when that intent can be ascertained from the statute,
even
though words, phrases, or clauses at some place in the statute must be omitted or inserted."

"In determining legislative intent, courts are not limited to a mere consideration of the
language
used but look to the historical background of the enactment, the circumstances attending its
passage, ,the
purpose to be accomplished, and the effect the statute may have under the various constructions
suggested."

"In order to ascertain the legislative intent, courts are not permitted to consider only a
certain
isolated part of parts of an act but are required to consider and construe together all parts thereof
in pari
materia. When the interpretation of some one section of an act according to the exact and
literal import of
its words would contravene the manifest purpose of the legislature, the entire act should be
construed
according to its spirit and reason, disregarding so far as may be necessary the literal import of
words or
phrases which conflict with the manifest purpose of the legislature." State v.
Gonzales, 255 Kan. 243, Syl.
¶¶ 2, 3, and 4, 874 P.2d 612 (1994).

While criminal statutes are generally strictly construed against the State, this
principle is subordinate to the rule that judicial interpretations must be reasonable and
sensible to effectuate the legislative design and true intent of the legislature. State v.
Schlein, 253 Kan. 205, Syl. ¶ 2, 854 P.2d 296 (1993). The legislature is presumed
to
intend that a statute be construed reasonably so as to avoid absurd or unreasonable
results. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).

Defendant argues that criminal statutes must be strictly construed and because
the legislature provided no specific guidance when the convicting jurisdiction does not
classify crimes as either misdemeanor or felony, the crime must then be scored as a
misdemeanor. Under such analysis a conviction for murder, rape, or a similar crime
would be scored as a misdemeanor.

A similar problem interpreting the KSGA was addressed in State v. Fifer, 20
Kan.
App. 2d 12, 881 P.2d 589, rev. denied 256 Kan. 996 (1994). Fifer
addressed the
legislature's failure to specifically address how to classify "attempts" as either person or
nonperson crimes. This court discussed the philosophy of the KSGA and reached a
result based upon the obvious intent of the legislature and a desire to avoid a clearly
unreasonable result. 20 Kan. App. 2d at 15-16.

We conclude that the rationale applied in Fifer is equally applicable here.
The
legislature knows that under general principles of criminal jurisprudence, states
generally divide the seriousness of crimes into two basic categories, felonies and
misdemeanors. It is equally clear that the two most important factors for the court to
consider in determining a sentence under the KSGA is the criminal history of the
defendant and the severity of the crime committed. The specific intent of the legislature
is that all prior adult felony convictions, including expungements, be considered and
scored in determining a defendant's criminal history. See K.S.A. 21-4710(d)(2).

We conclude the legislature intended the sentencing court to compare a prior
conviction to the most comparable Kansas offense to make a felony or misdemeanor
determination when such conviction occurred in a jurisdiction that does not distinguish
between felonies and misdemeanors. We are convinced such intent is clear when the
pertinent parts of the KSGA are construed in pari materia. For us to conclude
otherwise would effect an unreasonable result at odds with the legislature's manifest
intent.

THE DEPARTURE SENTENCE

Defendant contends the upward durational departure sentence imposed here
was not justified by the evidence in the record. The role of this court in reviewing this
issue was set forth in State v. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 1, 901
P.2d 1
(1995):

"In an appeal from a departure sentence an appellate court must determine pursuant to
K.S.A.
[1994] Supp. 21-4721(d) whether the sentencing court's findings of fact and reasons justifying
departure
(1) are supported by substantial competent evidence and (2) constitute substantial and compelling
reasons for departure as a matter of law."

Here, the departure was granted on a motion of the State alleging defendant's
crimes were part of a major organized drug manufacturing, production, cultivation, or
delivery activity contrary to K.S.A. 21-4717(a), which provides in relevant part:

"The following aggravating factors, which apply to drug crimes committed on or after
July 1, 1993,
under the sentencing guidelines system, may be considered in determining whether substantial
and
compelling reasons for departure exist:

"(1) The crime was committed as part of a major organized drug manufacture,
production,
cultivation or delivery activity. Two or more of the following nonexclusive factors constitute
evidence of
major organized drug manufacture, production, cultivation or delivery activity:

(F) Possession of large amounts of illegal drugs or substantial
quantities of controlled
substances.

(G) A showing that the offender has engaged in repeated criminal acts associated
with the
manufacture, production, cultivation or delivery of controlled substances." (Emphasis
supplied).

Because the sentencing court relied on aggravating factors specifically set out in
the KSGA, such factors are substantial and compelling as a matter of law. Further,
there is substantial competent evidence supporting each of the three aggravating
factors upon which the court relied. The court based its finding related to the packaging
materials on the fact that the marijuana was carefully wrapped in layers of plastic and
taped to prevent a drug-sniffing dog from detecting the presence of marijuana in the
packages. Regarding the large amount factor, the court found that seven bricks of
marijuana which weighed approximately 8.36 pounds was a large amount. Finally, the
trial court found that defendant's history of drug convictions during his military service
illustrated his repeated involvement with controlled substances. We are convinced the
findings of fact and reasons justifying defendant's departure sentence were supported
by substantial competent evidence and were reasons that constitute a substantial
compelling reason for imposing a departure sentence.

THE NONBASE SENTENCE AND POSTRELEASE

SUPERVISION PERIOD

Defendant raises two additional issues concerning the sentence imposed
by the
trial court. First, defendant contends the trial court erred in its calculation of the
departure sentence as to the nonbase conspiracy conviction. Secondly, defendant
contends the trial court erred in setting the postrelease supervision at 36 months.

Under K.S.A. 21-4720(b)(5), when the trial court imposes sentence for multiple
crimes, the court must establish a base sentence for the primary crime using the full
criminal history score. The primary crime is generally the crime with the highest
severity level. The remaining crimes are scored using a criminal history score of I.

Under the facts presented, defendant's conviction of offering to sell marijuana is
the primary crime, and defendant's full criminal history score is applied to that crime to
establish the base sentence. Thus, the conspiracy conviction, a severity level 3
offense, is scored using a criminal history score of I. Under K.S.A. 21-3302(d), K.S.A.
1994 Supp. 65-4163(3), and K.S.A. 21-4705, the presumptive sentence for the
conspiracy conviction is anywhere from 8 to 10 months. Pursuant to K.S.A. 21-4719(b)(2), the
maximum upward durational departure can be no more than double the
presumptive sentence, which here would be 20 months. Thus, it was error for the
sentencing court to impose a departure sentence of 52 months on the conspiracy
conviction.

Defendant further contends the trial court erred in calculating his postrelease
supervision period. Without comment, the court imposed a 36-month postrelease
supervision period when K.S.A. 1994 Supp. 22-3717(d)(1)(A) provides for a 24-month
postrelease supervision period. The 1995 amendment to 22-3717, which prescribed a
presumptive 36-month postrelease supervision period, did not become effective until
April 20, 1995.

Although the defendant's period of postrelease supervision may have been the
subject of a departure, the record is silent as to whether the court intended to apply a
departure analysis in establishing the postrelease period. Because reversal of the
sentence on the conspiracy conviction requires that the cause be remanded to the trial
court for resentencing, the postrelease supervision period should be revisited in
accordance with this opinion.

SUFFICIENCY OF EVIDENCE

Defendant complains the evidence presented at trial was insufficient to support a
conviction of conspiracy to sell marijuana. When sufficiency of the evidence to sustain
a conviction is questioned, this court reviews all the evidence, viewed in a light most
favorable to the prosecution, to determine if a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. State v. Knighten, 260 Kan. 47, Syl.
¶ 1,
917 P.2d 1324 (1996).

"To establish a conspiracy it is not necessary that there be any formal agreement
manifested by
formal words, written or spoken; it is enough if the parties tacitly come to an understanding in
regard to the
unlawful purpose and this may be inferred from sufficiently significant circumstances."
State v. Small, 5
Kan. App. 2d 760, Syl. ¶ 2, 625 P.2d 1, rev. denied 229 Kan. 671 (1981).

Further, "while an agreement is a necessary element of a conspiracy, the existence of
the agreement does not need to be proved directly but may be inferred from other facts
proved." 5 Kan. App. 2d 760, Syl. ¶ 3.

Here, the evidence showed that on different occasions, both the defendant and
Rivera called Officer Riniker to discuss and make arrangements for the marijuana sale.
Defendant and Rivera referred to each other during these telephone conversations.
Defendant and Rivera drove together from New Mexico to Dodge City, produced the
marijuana from the car they drove together, and jointly presented the marijuana to the
undercover officers. There is sufficient evidence in this record to support the
defendant's conspiracy conviction.

"The test to determine whether the charges in a complaint or information are
multiplicitous is whether one offense requires proof of an element not necessary to
prove the other offense. If so, the charges stemming from a single act are not
multiplicitous." State v. Utterback, 256 Kan. 340, Syl. ¶ 2, 886 P.2d 808
(1994). The
conspiracy to sell marijuana charge required proof of an agreement between defendant
and Rivera to sell the marijuana. Proof of that agreement was not a required element
of the offer to sell marijuana charge; therefore, the charges are not multiplicitous.

PROSECUTIONAL MISCONDUCT

During closing arguments the prosecutor made the following statement:

"It is absolutely correct that the Defendant does not have to testify. The Defendant does
not have
to put on any case at all. When we walked in, I bore the burden of proof to you. And if I can't
prove it,
she's right, he's not guilty. But once the Defendant elects to make a defense and put on a
defense, you
get to evaluate it just as critically as you evaluate mine. It's not a one-sided deal. Everybody has
choices
and with those choices come responsibilities."

Defendant objected, claiming this argument shifted the burden of proof from the
State to the defendant. The trial court overruled the objection. Defendant now argues
this statement constitutes an improper remark requiring reversal of his convictions.

"The prosecution is given wide latitude in language and in manner or presentation of
closing
argument as long as it is consistent with the evidence adduced. Improper remarks made by the
prosecutor in closing argument are grounds for reversal only when they are so gross and flagrant
as to
prejudice the jury against the defendant and to deny the defendant a fair trial." State v.
Eastbridge, 20
Kan. App. 2d 973, Syl. ¶ 3, 894 P.2d 243 (1995).

The prosecutor's remarks related to the jury's evaluation of defendant's
evidence, not a statement that the burden of proof had changed. While such argument
may be improper, it was not so gross or flagrant as to prejudice the jury against
defendant and to deny him a fair trial.

Affirmed in part, reversed in part, and remanded to the district court for
resentencing consistent with this opinion.